With much attention across Maryland, including the county community, focusing on Watershed Implementation Plans (WIPs), MACo seeks to help better inform these discussions with some information and analysis relevant to their ongoing implementation. This item seeks to lay out some of the basics of current watershed issues, provide helpful links to sources for more exhaustive information, and to set up some more detailed treatment in the weeks ahead.

Q: What is a Watershed Implementation Plan, and who has to comply with it?

The plan is part of a “pollution diet” for the Chesapeake Bay area, to reach ambitious targets in reducing the “total maximum daily load” (TMDL) of specific nutrients – nitrogen, phosphorous, and sediment – into the Chesapeake Bay. To comply, the load of these nutrients into the Bay must be substantially reduced in the coming years.

The U.S. Clean Water Act of 1972 (expanding and consolidating a variety of preceding regulations) was the main federal legislation empowering the United States Environmental Protection Agency (US EPA) to monitor and regulate a variety of water issues, including making declarations of impaired waterways.

Amidst a variety of consent decrees arising from stakeholders in several Bay watershed states, the US EPA issued a declaration of the Chesapeake Bay TMDL in December of 2010. That finding, essentially that the Bay constituted an impaired waterway, placed its watershed under much greater scrutiny by the federal government’s rule-making powers.

No, the Bay TMDL affects six states (New York, Pennsylvania, West Virginia, Maryland, Delaware, and Virginia) and the District of Columbia, all of whom at least partially lie within the Chesapeake Bay’s 64,000 square mile watershed. This is the largest geographical area that the US EPA has subjected to a TMDL limitation.

Maryland, along with each other affected jurisdiction, is required to comply with the EPA’s assigned targets for nutrient reduction under the TMDL.

Q: Why is this arising as an issue in each county, rather than statewide?

The Maryland Department of the Environment (MDE) developed an overall strategy calling for a state plan to target governmental facilities and state-controlled resources, but then delegated to each county its own targets for nutrient reduction. This process, stalled at several points by difficulties with data and modeling systems, has yielded aggressive goals for each county to address nutrient loads from its territory. No state legislation was passed to govern or direct this administrative process.

Each affected state is required by US EPA to meet its targets for 2025, with an interim check (generally intended to have made 60% progress toward reduction goals) in 2017. The US EPA also intends to develop two-year progress milestones.

While counties, and nearly all stakeholders, agree with the goals of water quality and Bay cleanup, the potential costs of implementing the full WIPs have been staggering for many jurisdictions. Even under optimistic cost estimates, many individual counties face potential costs in the billions, with statewide implementation potentially totaling $20-40 billion. Technical and timing concerns with the available data, modeling systems used to generate nutrient load estimates, and measuring results have also clouded the progress on these fronts.

Q: What happens if the county is unable to meet the targets in its plan?

US EPA asserts wide authority to engage a variety of enforcement actions – ranging from the redirection of federal funding to the outright denial of state-issued permits. The EPA website includes this statement: “EPA’s goal is for jurisdictions to successfully implement their WIPs, but the agency is prepared to take necessary actions in all jurisdictions for insufficient WIP implementation or pollution reductions. Federal actions can be taken at any time, although EPA will engage particularly during two-year milestones and refining the TMDL in 2012 and 2017.”

MACo has submitted formal comments and letters to all the actors involved, dating back to the inception of this effort, raising multiple points about implementation costs and the need for maximum local flexibility. Watershed issues have been a staple offering at each MACo conference for the duration of the TMDL development. Individual counties have routinely raised their own implementation concerns, especially as estimates of local costs have been developed.

[…] a substantial cost of both public and private stormwater projects, necessitated jointly by the federal TMDL requirements for the Bay watershed, plus recent state legislation requiring numerous counties to establish stormwater fees and […]